Conor Friedersdorf: Judge sides with Americans' privacy rights

Millions of people felt their rights were being violated when they learned that the National Security Agency collects and stores details about the private telephone calls of virtually everyone in America.

This week, a federal judge validated their objections.

In a decision issued Monday, Judge Richard J. Leon of the U.S. District Court for the District of Columbia found that “bulk telephony metadata collection” very likely violates the Fourth Amendment rights of tens of millions of Americans who are subject to it.

“I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” he wrote in a 68-page ruling filled with notable lines. “Surely, such a program infringes on the degree of privacy that the founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”

Judge Leon also questioned the efficacy of the NSA program. “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote after reviewing all evidence provided by the Obama administration. “I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

Translation: The privacy we're giving up probably isn't making us significantly safer.

The decision echoes many of the arguments that civil libertarians have been making since June, when material leaked by Edward Snowden revealed the scope of mass surveillance on innocents.

Alas, the victory for NSA critics may be short-lived. Legal experts believe that Judge Leon's ruling is likely to be struck down on appeal, and that the case could go all the way to the Supreme Court before it is finally resolved. As legal analyst Andrew Cohen put it, “We are still much closer to the beginning of this story than we are to the end.”

But even if this decision isn't the final word on the constitutional legitimacy of NSA telephone surveillance, it is an important development. Until this week, surveillance state officials could point to decisions made inside the secret Foreign Intelligence Surveillance Act court system to claim that the judiciary has signed off on their actions and that our constitutional rights are perfectly secure.

They'd neglect to mention that their actions have yet to be ratified by the judiciary in normal court proceedings, where an adversarial process precedes a ruling on constitutional questions.

Now, NSA critics can point out that the first constitutional challenge to go before a normal court resulted in a scathing description of the tools the NSA uses as “almost Orwellian” and a finding that “metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.” In other words, the Americans who have been so upset by recent revelations about the NSA aren't naive, uninformed or overreacting to the news. A federal judge who reviewed the relevant information also sees a likely violation of rights.

Judge Leon could have sided with the NSA.

Instead, he sided with the people who insist that the NSA is violating the Fourth Amendment, that it’s illegitimate to collect the private data of tens of millions of innocents to catch a few bad guys, and that the founders would be aghast at the Obama administration's behavior.

Stay tuned for the appeal.

Register opinion columnist Conor Friedersdorf also is a staff writer for the Atlantic.

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